The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH P. MARTINEZ, DOCKET NUMBER
Appellant, DE-0752-14-0210-I-2
v.
DEPARTMENT OF HOMELAND DATE: January 12, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven W. Zachary, Esquire, Mesa, Arizona, for the appellant.
Adam A. Odell, Callie LeRoy, Esquire, and Dean L. Lynch, Esquire,
Tucson, Arizona, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely refiled without good cause shown for the delay.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant filed a Board appeal challenging his removal. Martinez v.
Department of Homeland Security, MSPB Docket No. DE-0752-14-0210-I-1,
Initial Appeal File (I-1 IAF), Tab 1. During the proceedings below, the agency
asserted that the appellant produced several sensitive law enforcement documents
in the course of discovery and that the appellant’s unauthorized possession and
production of these documents presented an apparent violation of law. I-1 IAF,
Tab 15 at 4. The agency referred the matter for investigation and requested that
the appeal be stayed pending its outcome. Id. The parties stipulated to a
dismissal without prejudice. I-1 IAF, Tab 17, Initial Decision (I-1 ID) at 2. The
administrative judge thus dismissed the appeal without prejudice on May 7, 2014,
stating that the appeal must be refiled no later than either 30 days after the agency
notified the appellant that it concluded its investigation or September 7, 2014,
whichever was earlier. Id. The administrative judge also warned the appellant
that, if he did not refile his appeal within the aforementioned deadline, it might be
dismissed as untimely filed. Id.
3
¶3 The agency concluded its investigation in December 2014, but it did not
inform the appellant that the investigation was closed. See Martinez v.
Department of Homeland Security, MSPB Docket No. DE-0752-14-0210-I-2,
Initial Appeal File (I-2 IAF), Tab 6 at 14. The appellant did not refile his appeal
until May 2015. I-2 IAF, Tab 1. He asserted that good cause existed for his
filing delay because, inter alia, the agency threatened criminal charges against
him to get him to stop exercising his appeal rights, refiling would incite the
agency to charge him with a crime, and the agency misled the administrative
judge into thinking it was conducting an investigation to stop him from exercising
his rights. Id. at 4-7.
¶4 The administrative judge informed the appellant that his refiled appeal
appeared to be untimely and ordered him to show that it was more likely than not
that his appeal was refiled on time or that good cause existed for the delay. I-2
IAF, Tab 4. In response, the appellant asserted that good cause existed for his
filing delay. I-2 IAF, Tab 5. Specifically, he asserted that: (1) he timely filed
his initial appeal; (2) he consistently demonstrated his intent to appeal the
agency’s decision; (3) the length of his filing delay was minimal, given that he
was waiting for the resolution of the agency’s threat of criminal charges; (4) the
refiling deadline appeared to be based on the understanding that the agency had a
certain time period to investigate or bring criminal charges against him and thus
was confusing or arbitrary; (5) there had been only one dismissal without
prejudice; and (6) the good cause standard should be liberally construed. Id.
at 10-15. The agency responded that the appellant did not meet his burden of
proving good cause for the delay because: (1) he intentionally missed the refiling
deadline; (2) the delay was not minimal; (3) he was represented by counsel; (4)
his assertions concerning agency threats were unsupported, untrue, and
implausible; and (5) he did not explain why he did not request an extension or
4
otherwise contact the administrative judge prior to the refiling deadline. 2 I-2
IAF, Tab 6 at 6-12. The agency also asserted that it would be prejudiced by
allowing the appellant to refile his appeal. Id. at 12.
¶5 The administrative judge dismissed the appeal as untimely refiled with no
good cause shown for the delay. I-2 IAF, Tab 7, Initial Decision (I-2 ID). The
appellant has filed a timely petition for review, Petition for Review (PFR) File,
Tab 1, the agency has filed a response in opposition to the petition for review,
PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4. 3
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The administrative judge correctly found, and it is undisputed, that the
appellant’s appeal is untimely refiled. The administrative judge dismissed the
appeal without prejudice and stated that it must be refiled no later than 30 days
after the agency notified the appellant that it concluded its investigation or
September 7, 2014, whichever was earlier. I-1 ID at 2. Because the agency did
not notify the appellant that it had concluded its investigation, I-2 IAF, Tab 6 at
14, the deadline for refiling the appeal was September 7, 2014. The appellant did
not refile his appeal until May 18, 2015. I-2 IAF, Tab 1. Thus, he refiled his
appeal over 8 months past the deadline set forth in the initial decision dismissing
his appeal without prejudice.
2
The agency also submitted an unsworn declaration of a Special Agent in Charge
stating that the agency’s Office of Inspector General declined to investigate the
appellant’s alleged unauthorized disclosure, the U.S. Attorney declined criminal
prosecution, and the agency’s Office of Internal Affairs closed the investigation in
December 2014. I-2 IAF, Tab 6 at 14. The declarant indicated that the appellant was
not notified when the investigation was closed because it is not agency policy to notify
former employees that an investigation is closed. Id.
3
The appellant has attached new evidence to his petition for review in the form of his
August 2015 affidavit detailing the timeline of, and his reasoning for, waiting to refile
his appeal. PFR File, Tab 1 at 17-18. We do not consider this evidence because it is
not based on information not readily available before the record closed below, despite
the appellant’s due diligence. 5 C.F.R. §§ 1201.114(b), 1201.115(d); see Ellis v.
Department of the Navy, 117 M.S.P.R. 511, ¶ 12 (2012).
5
¶7 Because the appeal was untimely refiled, the appellant must establish good
cause for waiving the refiling deadline. See Medina v. Department of the Air
Force, 66 M.S.P.R. 194, 197 (1995). The appellant bears the burden of proof, by
a preponderance of the evidence, regarding issues of timeliness. 4 5 C.F.R.
§ 1201.56(b)(2)(i)(B). The Board has identified the following factors as
supporting a finding of good cause for waiving the refiling deadline: (1) the
appellant’s pro se status, timely filing of the initial appeal, intent throughout the
proceedings to file an appeal, minimal delay in refiling, and any confusion;
(2) the small number of dismissals without prejudice; (3) an arbitrary refiling
deadline; (4) the agency’s failure to object to the dismissal without prejudice; and
(5) the lack of prejudice to the agency in allowing the refiled appeal. Gaddy v.
Department of the Navy, 100 M.S.P.R. 485, ¶ 13 (2005).
¶8 In his initial decision on the refiled appeal, the administrative judge found
that the appellant did not show good cause for the refiling delay because: (1) he
was represented by counsel; (2) the length of the delay was significant; (3) the
appellant did not assert confusion concerning the filing deadline; (4) the deadline
was not arbitrary; (5) the fact that there was only one dismissal without prejudice
was unimportant, particularly given the extreme delay by the appellant in refiling
his appeal; and (6) the appellant failed to explain why he could not refile his
appeal within the relevant time period. I-2 ID at 5. We agree. See Nelson v. U.S.
Postal Service, 113 M.S.P.R. 644, ¶¶ 9-10 (2010) (finding no good cause for a
pro se appellant’s 4-month delay in refiling his appeal where the initial decision
clearly identified the date for refiling and warned him of the consequences of
failure to refile by that date, and he failed to provide any evidence justifying any
confusion over the deadline).
4
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6
¶9 Further, we find that the appellant’s arguments on review do not provide a
basis for disturbing the initial decision. PFR File, Tab 1. The appellant appears
to assert that the administrative judge erred in finding no good cause shown for
his untimely refiling because he should have found that the refiling would “incite
the agency” to take action against him. Id. at 10-11. We find no error in this
respect, however, because we agree with the administrative judge that the
appellant has not submitted specific evidence or argument regarding how refiling
his appeal or contacting the regional office prior to the expiration of the refiling
deadline to communicate his intent to refile his appeal would have affected the
agency’s investigation or caused the agency to take any action against him.
I-2 ID at 5. The appellant also asserts that the agency’s decision whether or not
to pursue criminal charges was a circumstance beyond his control. PFR File, Tab
1 at 11-12. However, he does not explain how the agency’s pursuit of the
investigation, even if outside of his control, affected his ability to refile his
appeal or otherwise communicate to the regional office his intent to refile. We
therefore find that this argument does not demonstrate good cause for the
appellant’s untimely refiling. See Chavez v. Office of Personnel
Management, 46 M.S.P.R. 390, 393 (1990) (finding no good cause for the delay
in filing the appeal where, although the appellant presented circumstances outside
of his control, he did not explain how the circumstances affected his ability to
timely file his appeal). Finally, the appellant asserts that we should grant his
petition for review in the interest of public policy because no agency should be
permitted to mislead an appellant into believing that he may face criminal charges
if he chooses to refile an appeal. PFR File, Tab 1 at 12-13. We find that the
appellant has not presented evidence or argument regarding how the agency
misled him into believing that he may face criminal charges if he chose to refile
7
his appeal. Thus, we find that this argument does not provide a basis for
disturbing the initial decision. 5
¶10 Finally, we have considered the appellant’s remaining arguments, including
his reassertion of many of the arguments from below. PFR File, Tabs 1, 4.
However, these arguments do not provide a basis for disturbing the initial
decision. See Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987). Accordingly, we find that the appellant
has not shown good cause for his untimely refiling. See Medina, 66 M.S.P.R. at
197-98.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
5
There is no evidence that the agency threatened to file criminal charges because the
appellant filed an appeal or intended to refile his appeal. Further, the agency states that
the U.S. Attorney has the sole power of criminal prosecution. PFR File, Tab 3 at 10
(citing 28 U.S.C. § 547).
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title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.